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Natural Resources Defense Council v. The Pollution Control Bd.

Court of Appeals of Illinois, Fourth District

July 22, 2015

NATURAL RESOURCES DEFENSE COUNCIL, PRAIRIE RIVERS NETWORK, and SIERRA CLUB, Petitioners,
v.
THE POLLUTION CONTROL BOARD, a State Agency; THE ENVIRONMENTAL PROTECTION AGENCY, a State Agency; and DYNEGY MIDWEST GENERATION, INC., a Corporation, Respondents

Page 408

Direct Review of an Order of the Illinois Pollution Control Board. No. 13-017.

Ann Alexander (argued), of Chicago, for petitioner Natural Resources Defense Council.

Albert Ettinger, of Chicago, for petitioner Sierra Club.

Daniel J. Deeb (argued), Amy Antoniolli, and Bina Joshi, all of Schiff Hardin, LLP, of Chicago, for respondent Dynegy Midwest Generation, Inc.

Lisa Madigan, Attorney General, of Chicago (Carolyn E. Shapiro, Solicitor General, and Timothy M. Maggio (argued), Assistant Attorney General, of counsel), for other respondents.

Pope, Presiding Justice and Knecht, Justice concurred in the judgment and opinion.

OPINION

Page 409

TURNER, JUSTICE.

[¶1] In September 2012, the Environmental Protection Agency (IEPA) issued a national pollution discharge elimination system (NPDES) permit for discharge of water pollution to respondent Dynegy Midwest Generation, Inc. (Dynegy). In October 2012, petitioners, Natural Resources Defense Council, Prairie Rivers Network, and Sierra Club, filed a petition for review before the Pollution Control Board (Board). In December 2013, petitioners moved for summary judgment. In February 2014, Dynegy and IEPA filed cross-motions for summary judgment. In June 2014, the Board granted petitioners' motion in part, remanding the permit to IEPA with instructions that it be amended to require monthly rather than quarterly monitoring of mercury discharges, but denied the remainder of the motion and granted the cross-motions for summary judgment.

[¶2] On appeal, petitioners argue the Board (1) erred in holding the IEPA was not required to establish a case-by-case technology-based effluent limitation (TBEL) for discharges associated with Dynegy's facility and (2) failed to enforce IEPA's regulation requiring a response to citizens' comments. We affirm.

[¶3] I. BACKGROUND

[¶4] Dynegy operates the Havana Power Station, " an oil and coal-fired, six-unit steam-electric generating facility" located in Mason County. The Havana facility is located on the east bank of the Illinois River, approximately two miles south of Havana.

[¶5] In October 2006, Dynegy filed an application for renewal of its NPDES permit (No. IL0001571) for the Havana facility. The permit application disclosed that Dynegy expected to construct " an activated carbon mercury sorbent injection" (ACI) system. The ACI system is a form of " air pollution control technology that controls mercury emissions into the air." The system cleans a plant's flue gas emissions through the " injection of activated carbon into the flue gas," which absorbs mercury and is later captured by a " particulate removal system." Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category, 78 Fed.Reg. 34,432, 34,450 (June 7, 2013) (to be codified at 40 C.F.R. pt. 423) (proposed ELG). Dynegy estimated that after installation of the ACI equipment, the facility would discharge up to 260 tons of fly ash and sorbent residue to the facility's ash pond on a daily basis. Dynegy estimated that up to 2.6 tons of the combined material sent to the ash pond

Page 410

would be mercury-bearing sorbent residue.

[¶6] The IEPA tentatively found the proposed activities described in the permit application would " result in the attainment of water quality standards *** [and] will benefit the community at large by allowing for the continued operation of the power plant and reduction of mercury and other pollutants in the atmosphere." The IEPA found " [m]ercury that has been removed from air emissions is expected to stay in the sorbent," and the sorbent will then be stored in an ash pond. The IEPA also stated as follows:

" Between zero and 0.6 pounds of mercury per day is predicted to enter the pond. This is mercury that otherwise would have been deposited in the Illinois River or other water bodies by air deposition. Whatever low levels that are discharged from the ash pond represent a decrease in loading to the environment."

[¶7] In April 2011, the IEPA issued a draft NPDES permit and sent it to both Dynegy and the United States Environmental Protection Agency (USEPA) for comment. In May 2011, the IEPA issued the draft permit to the public, seeking comments from citizens and interested groups.

[¶8] In June 2011, Prairie Rivers Network and Sierra Club offered written comments on the draft permit and requested a public hearing. A public hearing was conducted in November 2011. In December 2011, petitioners jointly filed comments with IEPA concerning the draft NPDES permit, arguing, inter alia, the IEPA failed to use its best professional judgment to determine the best available technology to control the discharge of mercury or to require Dynegy to submit the information necessary to support such a determination.

[¶9] The USEPA also responded to IEPA's invitation to comment. USEPA's response letter stated it had reviewed the draft permit and would not object to the issuance of the permit as drafted. The USEPA did, however, recommend five changes, one of which dealt with mercury. The USEPA recommended the IEPA " should accelerate the collection of the mercury data from quarterly to monthly."

[¶10] In September 2012, the IEPA issued the NPDES renewal permit for the Havana facility. With respect to mercury, the permit retained the quarterly monitoring proposed in the draft but, instead of requiring only 12 samples, required monitoring " throughout the life of the permit." IEPA also issued a NPDES responsiveness summary, addressing comments it had received from the public.

[¶11] In October 2012, petitioners filed a petition with the Board for review of IEPA's decision to issue the NPDES permit. Petitioners claimed the Clean Water Act (33 U.S.C. § § 1251 to 1387 (2012)) required that NPDES permits include a TBEL based on the best available technology for toxic pollutants. Petitioners argued the IEPA failed to comply with these requirements and that no TBEL was included in the permit for mercury or any other toxic pollutants. Petitioners also argued the IEPA's responsiveness summary failed to respond to significant comments.

[¶12] In December 2013, petitioners filed a motion for summary judgment. In February 2014, Dynegy and the IEPA filed cross-motions for summary judgment.

[¶13] In June 2014, the Board granted petitioners' motion in part, ordering a change to the permit's schedule for mercury monitoring. The Board rejected petitioners' arguments regarding (1) the need for a mercury TBEL and (2) the ...


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